Volume 76, Number 4

October 2001

Reciprocity on the Streets: Reflections on the Fourth Amendment and the Duty to Cooperate with the Police

David T. McTaggart

Illinois v. Wardlow, the Supreme Court’s most recent Fourth Amendment decision involving encounters between police and pedestrians, stands for a proposition that, at first glance, appears uncontroversial and commonsensical: If a citizen indicates a desire not to cooperate with a police officer, then that officer has “reasonable suspicion” to justify a limited search of the citizen. This Note argues, however, that the uncooperative citizen is, in many respects, symptomatic of a history of aggressive police activity. While the Fourth Amendment is aimed at preventing arbitrary invasions of liberty, the Wardlow opinion promises only to escalate the level of police activity, thereby fueling the cycle of antagonism between police and citizens. The cooperation of every citizen in the enforcement of our nation’s laws is the preferred normative aim, but this Note argues that such a goal will not be achieved unless and until the mutual perceptions of mistrust between the police and citizens are ameliorated. This Note analyzes the role that the Fourth Amendment might play in this endeavor and juxtaposes the right to ignore abusive police officers with the duty to cooperate with officers acting legitimately. The Note concludes that Fourth Amendment doctrine in this area has gradually granted unfettered discretion to police officers without providing appropriate guidelines to restrain the passions which accompany such a dangerous profession. It closes with some proposals by which all parties involved–pedestrians, individual police officers, and entire police forces–can respect one another’s interests and better serve society’s needs.

Typography in the U.S. Reports and Supreme Court Voting Protocols

B. Rudolph Delson

Supreme Court Justices frequently divide their opinions into parts, stncturing their decisions with Roman numerals, capital letters, Arabic numerals, and so on. This typographical convention, called here “outline-style formatting,” began to appear in the U.S. Reports in 1927 and has changed how the Justices create law. In this Note, Rudolph Delson presents a study of outline-style formatting in Supreme Court opinions. Delson suggests that stylistic concerns, such as the desire to make long opinions more approachable, drove the Court to adopt outline-style formatting. However, over time the Justices came to rely on outline-style formatting when they voted, joining in and dissenting from opinions on a part-by-part basis. Delson concludes that outline-style formatting is therefore no longer merely stylistic but now facilitates strategic behavior by the Justices.

Congressional Influence on Judicial Behavior? An Empirical Examination of Challenges to Agency Action in the D.C. Circuit

Richard L. Revesz

Building on his earlier work on judicial decisionmaking in the D.C. Circuit, Professor Revesz now examines whether this court’s ideological divisions are affected by changes in the composition of the political branches: the two chambers of Congress and the Presidency. Thus, he seeks to test empirically the plausibility of positive political theory models of adjudication, which posit that judges act in an ideologically “strategic” manner. The data set developed for this study consists of all cases decided by the D.C. Circuit between 1970 and 1996 that challenged the health-and-safety decisions of twenty federal agencies. While the study confirms the author’s earlier findings of ideological voting in the D.C. Circuit, it does not find any statistically significant evidence that these ideological divisions are affected by the party controlling Congress or the Presidency. This finding invites a reassessment of the leading positive political theory accounts of the effects of judicial review of administrative action.

Diaspora Bonds

Anupam Chander

Diasporas–groups who maintain ties to a homeland while living abroad–present a challenge to standard paradigms of international law. The dominant statist model of international law, which limits the reach of a state’s laws to its own geographic boundaries, allows no legal connection between a diaspora and its homeland. The cosmopolitan model of international law, which minimizes the importance of nationality, also discourages such legal ties. Professor Anupam Chander proposes a third paradigm–the diasporan model–which accommodates the dual loyalties and interests of people living in diasporas by allowing them to be governed by the laws of both their homelands and their adopted countries. As an example of host the diasporan model might settle concrete legal problems, Chander discusses Resurgent India Bonds, a mechanism that the Indian government uses to raise capital from the Indian diaspora. He suggests a diasporan solution to the choice-of-law question raised by foreign-issued securities: enforcing forum-selection clauses which keep private litigants out of U.S. courts, while allowing regulators to enforce U.S. law against foreign issuers. This hybrid solution, Chander argues, makes a diasporan compromise: It respects the sovereignty of the adopted country over matters of public concern while allowing the diaspora to choose the law of its homeland to resolve private disputes.


Antitrust and International Regulatory Federalism

Andrew T. Guzman

In this Essay, Andrew Guzman proposes internationalization of antitrust law to supplant current methods of antitrust regulation across national borders. Specifically, instead of relying on local regulation, bilateral agreements between states, or a choice-of-law rule for antitrust enforcement, countries should adopt universal substantive standards. Moreover, Guzman recommends the World Trade Organization (WTO), which already employs a dispute resolution mechanism, as the governing forum for international antitrust issues. There, states can negotiate transfer payments in one international transaction to achieve agreement in another. Upon evaluating Professor Eleanor Fox’s proposal of a stand-alone World Competition Forum that would specialize exclusively in international antitrust negotiations, Guzman concludes that the WTO is the preferred forum. Its dispute resolution system would facilitate substantive cooperation among countries by allowing for concessions exchanged in antitrust as well as in other areas of international relations.


Hardened Positions: Guatemala Cement and WTO Review of National Antidumping Determinations

David A. Yocis

When the World Trade Organization (WTO) came into being in 1995, it brought promises of international dispute resolution procedures that would supplant those in place from the General Agreement on Tarriffs and Trade. A series of decisions by WTO dispute resolution bodies concerning antidumping duties, however, have called into question their ability to provide dispute resolution in accordance with traditional legal norms. In this Note, David Yocis uses two decisions regarding antidumping duties on foreign cement in Guatemala–a Panel decision and a subsequent Appellate Body reversal on a procedural technicality–to illustrate that WTO procedures continue to reflect a preference for diplomatic rather than legal, means of dispute resolution. He concludes that, while the WTO dispute settlement system is an important step forward in the process of building a law-based system of international trade, it remains, in significant ways, more constrained by diplomacy than a truly independent judiciary.

“The Integrity of the Game Is Everything”: The Problem of Geographic Disparity in Three Strikes

Joshua E. Bowers

In response to the 1993 kidnapping and killing of twelve-year-old Polly Klaas, California enacted a rigid mandatory minimum sentencing law known as Three Strikes. The product of public fear and political exploitation, Three Strikes engendered little rational debate prior to passage. Consequently, the law’s scope was far broader than Californians anticipated, and primarily incarcerated nonviolent felons. In the years following the law’s passage, concerns about lost proportionality and the systemic costs of Three Strikes led to widespread adaptation of the law. While modification of Three Strikes is universal across the state, the extent of adaptation varies county by county, as each county’s prosecutors enforce the law according to their own principles of proportionality. In this Note, Joshua Bowers analyzes the resulting geographic disparity in the California Three Strikes law and suggests that by applying the Three Strikes law according to personal and local principles, prosecutors are improperly usurping the legislative power to determine a single, coherent principle of proportional punishment. He maintains that varying approaches to Three Strikes render the law a kind of “checkerboard statute,” violating what Ronald Dworkin calls the value of integrity in the rule of law. To remedy this problem, California counties must apply the Three Strikes law in a single, uniform manner. Bowers concludes that it is neither desirable nor feasible for prosecutors uniformly to apply the Three Strikes law as written. Instead, to ensure consistent application, the California legislature must change the law to reflect better a principle of proportionality acceptable throughout California.


The Ballot and the Bench

The Honorable Shirley S. Abrahamson

In this Speech, Shirley S. Abrahamson, Chief Justice of the Wisconsin Supreme Court, discusses and examines the benefits and drawbacks of popular elections of state court judges. While acknowledging that elections have the potential to compromise the integrity of the judiciary, in part because both voters and campaign donors will come before the court, the Chief Justice concludes that state electoral systems can be important tools to educate voters about the practice of judging and the importance of judicial independence.